It’s Bad

…when the court pokes fun at a case.

In Bayou Lawn, et al., v Department of Labor, Bayou Lawn, the Chamber Of Commerce of the United States of America, the National Hispanic Landscape Alliance, the Silvicultural Management Associates, Inc., and the Professional Landcare Network, among others, objected to a number of wage rules and bureaucratic requirements related to the H-2B visa program that had been promulgated by DoL.  Among other things, these groups doubted DoL’s authority even to write such rules.

Nor were DoL’s rules insubstantial:

These rules would decrease the maximum number of months an employer may employ an H-2B worker from ten to nine; require employers to guarantee that H-2B employees will work at least seventy-five percent of the hours certified in any twelve-week period and, if not, pay the employees the difference for the time not worked; require employers to pay non H-2B workers’ wages and benefits at least equal to those paid to H-2B workers if the two perform “substantially the same work;” require employers to pay for the round-trip airfare and subsistence costs of H-2B workers; and impose additional bureaucratic requirements, such as the filing of job orders, performing extensive domestic recruitment, and applying for a temporary labor certification.

A Federal court in Florida agreed and enjoined DoL from enforcing its rules.  DoL appealed, even while conceding that it had no actual authority for promulgating these rules [emphasis in the original]:

The DOL does not dispute that it has no express authority to make rules for the H-2B program.

Rather, DoL argued in all seriousness,

DOL counters that its authority may be inferred from the “statutory scheme [that] shows a Congressional intention to grant [it] rulemaking power.”

And here is the scheme that DoL argued [emphasis still in the original]:

[Federal law] instructs the Secretary of DHS to consult with the “appropriate agencies of the Government” in resolving whether to grant a foreign worker a visa upon the “petition of the importing employer.”  Although there is no grant of rulemaking authority to DOL in this statutory section, DOL asserts that as the result of the permission it grants to DHS to consult with it, DOL “has authority to issue legislative rules to structure its consultation with DHS.”  The end result, in DOL’s view, is that it is empowered to engage in rulemaking, even without the DHS.

The 11th Circuit thought this pseudo-reasoning…foolish.

We reject this interpretation of “consultation.”  Under this theory of consultation, any federal employee with whom the Secretary of DHS deigns to consult would then have the “authority to issue legislative rules to structure [his] consultation with DHS.”  This is an absurd reading of the statute and we decline to adopt it.

DOL was designated a consultant.  It cannot bootstrap that supporting role into a co-equal one.

DOL next argues that the “text, structure and object” of the INA evidence a congressional intent that DOL should exercise rulemaking authority over the H-2B program. This would be a more appealing argument if Congress had not expressly delegated that authority to a different agency.

And so on.

Just what is the competence level in this administration?

The 11th‘s ruling can be read here and here.


h/t Law Blog

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